Jones v. Astrue
Filing
31
MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 10/22/2015: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MILDRED JONES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, 1
Defendant.
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No. 13 C 1174
Magistrate Judge
Maria Valdez
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying Plaintiff Mildred Jones’s claims for
Disability Insurance Benefits and Supplemental Security Income. The parties have
consented to the jurisdiction of the United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). For the reasons that follow, Plaintiff’s motion to Reverse the
Decision of the Commissioner of Social Security is GRANTED IN PART and
DENIED IN PART, and the Commissioner’s motion for summary judgment [Doc.
No. 25] is DENIED.
BACKGROUND
I.
PROCEDURAL HISTORY
On July 6, 2009, the Claimant, Mildred Jones, filed claims for both Disability
Insurance Benefits and Supplemental Security Income, alleging disability since
Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant to
Federal Rule of Civil Procedure 25(d).
1
May 14, 2009 based on diagnoses of degenerative disk disease, major depressive
disorder, diabetes mellitus, gastro-esophageal reflux disease, hypertension, obesity,
and polysubstance abuse in lengthy remission. The claim was denied initially and
upon reconsideration, (R. 157), after which Jones timely requested a hearing before
an Administrative Law Judge (“ALJ”), which was held on March 25, 2011. (R. 158,
61.) Jones personally appeared and testified at the hearing and was represented by
counsel. A vocational expert also testified. (R. 94.)
On June 15, 2011, the ALJ denied Jones’s claims for both Disability
Insurance Benefits and Supplemental Security Income, finding her not disabled
under the Social Security Act. The Social Security Administration Appeals Council
then denied Jones’s request for review, leaving the ALJ’s decision as the final
decision of the Commissioner and, therefore, reviewable by the District Court under
42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.
FACTUAL BACKGROUND 2
A.
Background
Jones was born on April 30, 1971 and was 38 years old at the time of the ALJ
hearing. (R. 67)
B.
Medical Evidence
Jones’s treating physician – Dr. Chicos, a specialist in internal medicine –
submitted a questionnaire stating that Jones was unable to maintain competitive
employment and listing her diagnoses. (R. 353, 357, 358.) Dr. Chicos wrote that
Jones could sit for about two hours and stand or walk for about two hours. (R. 357.)
2
The following facts from the parties’ briefs are undisputed unless otherwise noted.
2
Dr. Chicos’s questionnaire stated that, while Dr. Chicos believed Jones could climb
and reach occasionally, she was not capable of bending, twisting, stooping, kneeling,
crawling, pulling, or pushing. (R. 356.) Dr. Chicos noted that Jones was capable of
walking less than one block without rest or severe pain. (R. 355.) She identified
Jones’s symptoms as low back pain, and listed clinical findings of “tender lower
back at palpation” and a positive straight leg-raising test. (R. 352.)
A second of Jones’s treating physicians, Dr. Dolatowski, also submitted a
questionnaire. Dr. Dolatowski, a specialist in internal medicine, also determined
that Jones was unable to maintain competitive employment. (R. 973.) Dr.
Dolatowski’s form concluded that Jones was capable of sitting for less than two
hours per day and standing or walking for less than two hours per day. (R. 974.) Dr.
Dolatowski also noted that Jones “suffers with severe depression and psychosis” in
reaching his determination. (R. 974.) Opinions were also obtained from state agency
medical consultants, who reviewed Jones’s medical records. After giving controlling
weight to Dr. Chicos’s opinion, Dr. Brill concluded that Jones’s impairments were
equal in severity to disorders of the spine in Listing 1.04A. (R. 470.) See 20 C.F.R.
Part 404, Subpart P, App. 1, § 1.04A.
Dr. Lavallo, another state agency physician, also reviewed Jones’s file. Dr.
Lavallo concluded that Jones was capable of maintaining light employment and
that she could sit for 6 hours per day and stand or walk for six hours per day. (R.
517.) Dr. Lavallo determined that Jones was capable of occasionally climbing,
balancing, stooping, kneeling, crouching, and crawling. (R. 518.) While Dr. Lavallo
3
concluded that Jones’s statements as to the extent of her impairment were partially
credible, he found that “the medical evidence does not suggest that [Jones]’s ability
to walk, stand, or sit is significantly limited.” (R. 521.) This conclusion was later
affirmed by another agency physician, Dr. Ruiz. (R. 558.)
C.
Plaintiff’s Testimony
Jones testified that she had last worked in May of 2009 as a control center
technician, but had quit after “missing a lot of work for being in a lot of pain and
[because of] a lot of medical issues that I had.” (R. 71.) She stated that she had quit
because she “couldn’t tolerate the noise, the people. I just couldn’t deal with it. It
was stressful. I just couldn’t take it any longer.” Id. Jones also testified that she had
left her prior job as a security guard – as well as the job as a control center
technician – because the pain made it impossible to stand or sit for the required
periods. (R. 77.)
With respect to her daily activities, Jones testified that her family prepared
meals for her, and that her daughter helped her with personal care, and would help
her bathe. (R. 72-73.) Jones stated that her family did the housework and shopping.
(R. 73.) While she was licensed to drive, Jones was unable to do so because she
could not focus, and her family would drive her when necessary. And while she had
enjoyed attending church in the past, it had “been years” since Jones had done so.
(R. 91.) Jones also stated that she did not receive visitors and was visited only by
her family. (R. 91-92.)
4
Jones testified that she was able to sit for a maximum of 30 minutes, after
which time she needed to stand due to pain; however, she also testified that it was
very difficult for her to stand for long periods of time because of pressure on her
back and legs and that, after twenty to thirty minutes, she would have to sit down
again. (R. 74.) She felt pressure running “from my neck down and then my legs. It
goes down into my lower back. And then my legs bother me also.” (R. 76.) Jones also
told the ALJ that she experienced pain in her back and legs twenty out of twenty
four hours per day. (R. 79.) The pain was a 10 on a scale of 1 to 10, 10 being the
most severe. (R. 80). When she received steroid injections, the pain would be
alleviated for one day but would return afterward. (R. 80-81, 84-85.) Jones took
numerous medications to treat the pain, including Tylenol, Vicodin, Lyrica, and
pain patches. (R. 83.) She also required the use of a cane whenever she needed to
stand and walk. (R. 79.)
Jones testified that she had diabetes, and that her vision in her right eye was
“very blurred.” (R. 85.) She treated her diabetes with oral medication, and was
compliant with her prescribed regimen. (R. 86.) She said she was unable to walk
half a block, (R. 74), that she had difficulty using stairs, and that it was often
difficult for her to feel her extremities. (R.74-75.) Jones left her house on average
twice per week, and she was able to lift approximately eight pounds. (R. 75-76.)
With respect to mental impairments, Jones testified that she “hear[d] things,
hallucinations,” and that she had mental breakdowns. (R. 86.) She had cut herself
three times, and had attempted suicide in the fall of 2010. (R. 87.) However, Jones
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had not been hospitalized as a result of mental illness. Jones also had difficulty
socializing with and otherwise being around other people, and had difficulty
focusing. (R. 88-89.) Jones, who was tearful at the hearing, testified that she would
be tearful frequently during a typical week. She had been taking Saphris as
prescribed by her treating psychiatrist, but the medication resulted in drooling and
an inability to sleep; Jones had informed her therapist about these problems, and
that they had discussed the possibility of inpatient treatment. (R. 89.) Jones further
testified that she slept for approximately two hours per night because her sleep
would be interrupted by hallucinations. (R. 90-91.) As a result, Jones was sleeping
for periods of approximately half an hour at a time during the day for a total of “two
or three hours a day.” (R. 91.)
D.
Vocational Expert Testimony
The ALJ asked the Vocational Expert (“VE”) a series of questions about a
hypothetical person with the same age, education, and work experience as Jones.
First, the ALJ asked about a hypothetical person with a residual functional capacity
(“RFC”) at the light exertional level, based on the evaluation of Dr. Lovallo. (R. 101.)
The ALJ specified that the individual would be limited to “occasionally climbing,
stooping, kneeling, crouching and crawling,” and that there would be “some
interruption in attention and concentration and overall pace, though she would be
expected to be able to complete tasks adequately.” The ALJ also specified that the
“hypothetical individual would have the ability to manage stresses involved in
routine and repetitive work.” The VE said that the hypothetical person could not
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perform Jones’s past work, but that other jobs at the light exertional level would be
available, including marker (115,000 jobs in the national economy, 4,200 in
Indiana), routing clerk (69,000 jobs nationally, 2,050 in Indiana), and mail clerk
(16,500 jobs nationally, 1,050 in Indiana).
In the second hypothetical, the ALJ asked about a person with the same
capacity as the individual in hypothetical one, but who also required “occasional
balancing with the use of a hand-held assistive device” and therefore was limited to
“jobs that can be performed using a hand-held assistive device required for uneven
terrain or prolonged ambulation.” (R. 104.) The ALJ also specified that the
individual would have “moderate limitations in concentration” and therefore limited
the time spent working in close proximity to others “in order to minimize
distractions” and specified that the person would complete a “low-stress job with
only occasional decision-making required,” only “occasional interaction” with coworkers and supervisors, and no interaction with the public. (R. 104.) The VE stated
that the hypothetical person could not perform any of Plaintiff’s past work and that
there were no jobs available at the unskilled level available where work in close
proximity to others was so limited. (R. 105-06.)
For hypothetical three, the ALJ retained the same criteria as the first
hypothetical but added that the person “would be given moderate limitations in
concentration work that is not performed in a noisy environment.” (R. 106.) The
ALJ specified that any jobs should require “low stress with only occasional decisionmaking, no interaction with the public, and occasional interaction with co-workers
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and supervisors.” (R. 107.) The VE found that a person so limited could not perform
any of Plaintiff’s past work, but could perform the three other jobs mentioned in
hypothetical one. Id.
For hypothetical four, the ALJ retained the same physical and mental
limitations as hypothetical three, but added “moderate limitations with persistence”
and “no task requiring intense focused attention for more than 30 minutes
continuously,” but added that “the individual would not be off task for more than 10
percent of the workday.” Id. The VE stated that the acceptable off-task time-perhour would be four minutes, and that ten percent of a given work hour would be six
minutes, exceeding the acceptable limit. (R. 108.) The VE specified, however, that it
would be acceptable for an employee in the three jobs listed in hypothetical one to
concentrate for thirty minutes, take a break of up to four minutes, and then resume
concentration for the rest of the hour. (R. 108-09.) In those conditions, the VE stated
that the person could not perform any of Plaintiff’s past work, but could perform the
three jobs mentioned in hypothetical one. (R. 109.)
Finally, in hypothetical five, the ALJ asked the VE about a hypothetical
person with the same limitations as in hypothetical four but added the “additional
limitation of having to use a hand-held assistive device at all times when standing”
or walking. (R. 110.) The VE stated that such a person could neither perform any of
Plaintiff’s past work nor could she perform any other work. Id.
On examination by Plaintiff’s attorney, the VE stated that the listed jobs
would tolerate one day of absence per month, or twelve days per year, inclusive of
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sick, vacation, and personal days. (R. 111.) The VE also specified that a total of 20
percent of off-task time during the work-day would be acceptable, but that that
estimate “include[d] regularly schedule[d] breaks and lunch.” (R. 112.)
E.
ALJ Decision
The ALJ found at step one that Jones had not engaged in substantial gainful
activity since her onset date of May 14, 2009. At step two, the ALJ concluded that
Jones had severe impairments of diabetes mellitus, hypertension, gastro-esophageal
reflux disease, obesity, degenerative disk disease, asthma, major depressive
disorder, and polysubstance abuse in lengthy remission. The ALJ concluded at step
three that the impairments, alone or in combination, did not meet or medically
equal a Listing.
The ALJ then determined that Jones retained the RFC to perform light work,
“except that the [she] may occasionally balance with the use of a hand-held assistive
device, may occasionally crawl, kneel, crouch, stoop, climb ladders, ropes, scaffolds,
ramps or stairs,” and that Jones was “limited to jobs that can be performed while
using a hand-held assistive device for prolonged ambulation or on uneven terrain.”
(R. 44.) The ALJ also found that Jones had “moderate limitations in persistence and
as a result is limited to work that is not performed in a noisy environment,” “does
not require intense, focused concentration for more than thirty minutes
consistently,” and was limited to “working in a low stress environment, in that only
occasional decision making will be required,” with “no contact with the general
public” and “only occasional interaction with co-workers and supervisors.” Id.
9
The ALJ concluded at step four that Jones could not perform her past
relevant work. At step five, however, based upon the VE’s testimony and Jones’s
age, education, work experience, and RFC, the ALJ concluded that Jones could
perform jobs existing in significant numbers in the national economy, leading to a
finding that Jones was not disabled under the Social Security Act.
DISCUSSION
I.
ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she has an “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(a). In order to determine whether a claimant is
disabled, the ALJ considers the following five questions in order: (1) Is the claimant
presently unemployed? (2) Does the claimant have a severe impairment? (3) Does
the impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the claimant unable to perform her former
occupation? and (5) Is the claimant unable to perform any other work? 20 C.F.R. §
416.920(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the
claimant is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The claimant bears the burden of proof at steps 1 through 4.
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Id. Once the claimant shows an inability to perform past work, however, the burden
then shifts to the Commissioner to show the claimant’s ability to engage in other
work existing in significant numbers in the national economy. Id.
II.
JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is
therefore limited to determining whether the ALJ’s findings are supported by
substantial evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971); Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not
substitute its judgment for that of the Commissioner by reevaluating facts,
reweighing evidence, resolving conflicts in evidence, or deciding questions of
credibility. Skinner, 478 F.3d at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th
Cir. 2008) (holding that the ALJ’s decision must be affirmed even if “’reasonable
minds could differ’” as long as “the decision is adequately supported”) (citation
omitted).
A reviewing court “examine[s] the ALJ’s decision to determine whether it
reflects a logical bridge from the evidence to the conclusions sufficient to allow . . .
[the] reviewing court[] to assess the validity of the agency’s ultimate findings and
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afford [the claimant] meaningful judicial review.” Moore v. Colvin, 743 F.3d 1118,
1121 (7th Cir. 2014); see Clifford, 227 F.3d at 872. The ALJ must at least minimally
articulate the “analysis of the evidence with enough detail and clarity to permit
meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351
(7th Cir. 2005); see Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007) (“An ALJ
has a duty to fully develop the record before drawing any conclusions . . . and must
adequately articulate his analysis so that we can follow his reasoning . . . .”).
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a claimant is disabled falls to the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
III.
ANALYSIS
Jones argues that the ALJ’s decision was improper because she did not
perform an adequate analysis at step 3, did not adequately assess Jones’s
credibility, and otherwise erred in assessing Jones’s RFC. Jones requests that the
Court reverse the ALJ’s determination and find that Jones is entitled to benefits or,
in the alternative, remand for additional proceedings. Although the ALJ did not err
in the step 3 analysis, the ALJ did err in reaching credibility conclusions and in the
assessment of Jones’s RFC, as will be described below. Accordingly, remand for a
redetermination of Jones’s application is appropriate in this case.
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A.
Step 3 Analysis
Jones argues that the ALJ erred in finding that she was not disabled at step
3. “In considering whether a claimant’s condition meets or equals a listed
impairment, an ALJ must discuss the listing by name and offer more than
perfunctory analysis of the listing,” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir.
2015) (quoting Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). The ALJ also
has a duty to “minimally articulate his or her justification for rejecting or accepting
specific evidence of disability. But he or she need not provide a written evaluation of
every piece of evidence that is presented.” Steward v. Bowen, 858 F.2d 1295, 1299
(7th Cir. 1988) (internal citation omitted); see also Herron, 19 F.3d at 334; Cirelli v.
Astrue, 751 F. Supp. 2d 991, 1002 (N.D. Ill. 2010) (discussing “three requirements
for an ALJ’s step three determination to meet the ‘substantial evidence’ standard”
highlighted by the Seventh Circuit).
Jones argues that, because Dr. Brill concluded that Jones’s impairments
equaled Listing 1.04A, the ALJ erred in finding that Jones was not disabled at step
3, as Brill “was the only state agency physician who provided an opinion as to
whether Ms. Jones’s impairments met or equaled a listed impairment.” This,
however, is not correct: in finding that Jones’s impairments did not equal listing
1.04A, the ALJ relied on the evaluations of Drs. Lavallo and Ruiz, who had
concluded that Jones was not disabled. (R. 49.) And although the ALJ did so before
discussing Dr. Brill’s opinion, the ALJ addressed the medical evidence in detail with
regard to Jones’s impairments earlier in the opinion and specifically noted a
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negative straight-leg raising test, which contradicts a finding of meeting or equaling
Listing 1.104A, see 20 C.F.R. Part 404, Subpart P, App. 1, 1.04A, as well as other
adverse medical evidence.
Although the ALJ’s discussion of the medical evidence took place separately
from the dismissal of Dr. Brill’s conclusion, the Seventh Circuit has specified that a
reviewing court is to read the Commissioner’s decision as a whole, and the
Commissioner need not “repeat substantially similar factual analyses at both steps
three and five.” Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004).
Additionally, although challenging the ALJ’s finding at step 3, Jones does not refer
to any medical evidence that the ALJ overlooked in reaching this conclusion, and
the ALJ gave a discussion of the medical evidence both supporting and
contradicting her conclusion in reaching it. Cf. Ribaudo v. Barnhart, 458 F.3d 580,
584 (7th Cir. 2006) (“[The ALJ’s] failure here to evaluate any of the evidence that
potentially supported Ribaudo’s claim does not provide much assurance that he
adequately considered Ribaudo’s case.”). The ALJ did not err in finding that Jones
did not qualify as disabled at step 3.
B.
Residual Functional Capacity
Jones also argues that the ALJ erred in concluding that she had the RFC to
perform light work with certain further restrictions. (R. 44.) A claimant’s residual
functional capacity is “the maximum that a claimant can still do despite [her]
mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir.
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2008); see 20 C.F.R. § 404.1545; SSR 98-8p. 3 In determining a claimant’s RFC, the
ALJ must consider all of a claimant’s “medically determinable impairments,”
including those which are not severe. 20 C.F.R. § 404.1545(a)(2). The RFC
assessment is made based on “all relevant medical and other evidence,” id. §
404.1545(a)(3) and considers both the claimant’s physical and mental abilities. Id. §
404.1545(b), (c). Because the ALJ erred in evaluating Jones’s credibility as to the
extent of her limitations and failed to analyze evidence relevant to those
limitations, remand is appropriate here.
1.
Credibility
Jones argues that the ALJ erred in a number of ways in determining that
Jones’s testimony as to her impairments was not credible. “ALJ credibility
determinations are given deference because ALJs are in a special position to hear,
see, and assess witnesses. Therefore, [this Court] will only overturn the ALJ’s
credibility determination if it is patently wrong, which means that the decision
lacks any explanation or support.” Murphy v. Colvin, 759 F.3d 811, 815-16 (7th Cir.
2014), as amended (Aug. 20, 2014), reh’g denied (Oct. 10, 2014) (citations omitted).
While receiving such deferential review, however, “the ALJ must explain her
decision in such a way that allows [this Court] to determine whether she reached
her decision in a rational manner, logically based on her specific findings and the
evidence in the record.” McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011); see
Interpretive rules, such as Social Security Rulings (ASSRs@), do not have force of
law but are binding on all components of the Agency. 20 C.F.R. ' 402.35(b)(1); accord Lauer
v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999).
3
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also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that, in assessing
the credibility findings, courts do not review the medical evidence de novo but
“merely examine whether the ALJ’s determination was reasoned and supported”).
Jones first argues that the ALJ improperly assessed her credibility by relying
on boilerplate language, thereby failing to evaluate her case. Jones is correct that
the “ALJ’s credibility finding included a familiar statement: ‘the claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above
residual functional capacity [assessment].’ ” Pierce v. Colvin, 739 F.3d 1046, 1050
(7th Cir. 2014). As the Seventh Circuit has repeatedly noted, this formulation
indicates that an ALJ may have determined a claimant’s residual functional
capacity before assessing her credibility as to the severity of her symptoms, which
reverses the required analysis. See, e.g., id.; Bjornson v. Astrue, 671 F.3d 640, 645
(7th Cir. 2012). However, while the ALJ in this case did use boilerplate language,
she also explained the reasoning behind her credibility conclusions as will be
discussed below; in such a situation, the use of boilerplate language is not alone a
reason for reversing the ALJ’s decision. See Pierce, 739 F.3d at 1050.
Jones, however, also challenges the ALJ’s credibility determination on other
grounds. First, she argues that the ALJ failed to adequately address the visual and
auditory hallucinations she testified to experiencing. 4 Without specifically detailing
Although Jones argues that the ALJ failed to address these issues in any capacity, the
Commissioner did in fact address these claims but determined that Jones was not credible
with respect to her assertions as to the extent of her symptoms, as the following section
discusses.
4
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the extent of Jones’s alleged symptoms, the ALJ noted that Jones experienced
visual and auditory hallucinations, and that her medical diagnoses were consistent
with such symptoms. (R. 45, 48.) However, the ALJ then found that Jones’s reports
as to the severity of the hallucinations were not credible because they were
contradicted by her medical records, because Jones had failed to attend numerous
“mental health treatment sessions,” and because Jones’s reports were contradicted
by other evidence in the record. (R. 48-49.) Jones is correct that, in relying on these
factors, the ALJ failed to adequately evaluate her credibility.
With respect to contradiction in the medical records, the ALJ cited to the
records of four mental health treatment sessions during which Jones’s physician
reported that Jones had been “alert and oriented in three spheres, presenting with a
euthymic mood and congruent affect, without suicidal or homicidal ideation,
without auditory or visual hallucination and with no discernable evidence of
delusional thinking.” (R. 48, 591, 593, 598, 600.) However, these notes are simply
recognitions that, at the time of the given appointment, Jones was not adversely
affected by her mental illness, the existence of which the ALJ otherwise
acknowledged. (R. 48.) As the Seventh Circuit has recognized, a “person who has a
chronic disease, whether physical or psychiatric, and is under continuous treatment
for it with heavy drugs, is likely to have better days and worse days.” Bauer v.
Astrue, 532 F.3d 606, 609 (7th Cir. 2008). In this respect, “a snapshot of any single
moment says little about [a claimant’s] overall condition.” Punzio v. Astrue, 630
F.3d 704, 710 (7th Cir. 2011). The ALJ in fact noted that Jones was treating her
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illness with medication, which supported her claims. (R. 48.) The fact that Jones
had not manifested severe symptoms during her treatment sessions was not a valid
reason to find that her testimony lacked credibility based on the ALJ’s analysis.
The ALJ also justified the credibility conclusion by noting that “a review of
the record disclose[d] that the claimant has cancelled or failed to attend far more
mental health treatment sessions than she has attended,” citing thirteen sessions
over a fifteen-month period; based on this record of absences, the ALJ concluded
that the “evidence strongly suggests that the claimant’s mental condition is not as
debilitating as she alleged.” (R. 48.) The ALJ is correct that a claimant’s failure to
follow treatment as prescribed can be reason to discount the claimant’s credibility if
there are “no good reasons for this failure.” SSR 96-7p, 1996 WL 374186; see
Schmidt v. Astrue, 496 F.3d 833, 844 (7th Cir. 2007); Luna v. Shalala, 22 F.3d 687,
691 (7th Cir. 1994). However, the ALJ cannot draw such an inference “without first
considering any explanations that the individual may provide, or other information
in the case record, that may explain infrequent or irregular medical visits or failure
to seek medical treatment.” SSR 96-7p; see also Shauger v. Astrue, 675 F.3d 690,
696 (7th Cir. 2012) (“Although a history of sporadic treatment or the failure to
follow a treatment plan can undermine a claimant’s credibility, an ALJ must first
explore the claimant’s reasons for the lack of medical care before drawing a negative
inference.”).
Here, while the ALJ correctly noted that Jones had missed a number of
scheduled treatment sessions with mental health professionals, the ALJ did not
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question Jones during the hearing as to her reasons for missing the appointments,
did not specify any other evidence relating to the missed appointments, and
provided no finding in her decision as to why Jones missed those appointments. (R.
48.) Although the Commissioner argues on appeal that the ALJ’s decision on this
point should be upheld because the notes of Jones’s therapist “clearly found that
Jones’[s] sporadic attendance was unreasonable and unacceptable,” (Def.’s Mot. at
12), the ALJ did not advance this rationale in finding Jones’s complaints lacked
credibility; as a result, the decision cannot be upheld on that basis. See Larson v.
Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (“[T]hese are not reasons that appear in
the ALJ’s opinion, and thus they cannot be used here.”) (citing SEC v. Chenery
Corp., 318 U.S. 80, 87–88 (1943)). And while an error in an ALJ’s credibility
determination can be deemed harmless where “the claimant’s testimony is
incredible on its face or the ALJ explains that the decision did not depend on the
credibility finding,” Pierce, 738 F.3d at 1051, that is not the case here. Instead,
Jones’s testimony is credible on its face and the ALJ was explicit that the credibility
finding was central to the finding of disability. Especially given the other problems
with the ALJ’s credibility analysis as described here, remand is appropriate. See
Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006) (remand appropriate where
“[t]he administrative law judge based his judgment call on a variety of
considerations but three of them were mistaken. Whether he would have made the
same determination had he not erred in these respects is speculative.”).
19
The ALJ also found that Jones was not credible because her reports of her
daily activities and social capabilities were inconsistent with other evidence in the
record. To an extent, the ALJ is correct: as the ALJ noted, while Jones testified at
hearing that she was unable to perform any personal care activities such as
personal grooming and hygiene on her own, (R. 47), the record indicates that Jones
had previously stated that she was able to cook, dress, and shop for herself. (R. 456.)
And while Jones also testified that she did not make any social visits and had no
visitors other than her children, Jones’s mother testified that Jones attends church
regularly. (R. 47-48, 282.) The ALJ also pointed out that, while Jones said that she
was unable to maintain concentration sufficient to watch television, her mother
reported that she and Jones would frequently watch television together. (R. 282.)
While the above discrepancies were correctly noted by the ALJ, she also
overstated some of those discrepancies. For instance, while the ALJ concluded as
part of her credibility finding that Jones “visits with friends daily,” (R. 48), the
record cited by the ALJ does not support this conclusion; instead, the record – a
report of Jones’s functional capacity from her mother (which the ALJ discounted
elsewhere in the opinion (R. 51)) – simply states that Jones “spends most of her day
watching TV, visiting with family, or talking on the phone.” (R. 282.) This is
especially relevant given that the Seventh Circuit has often criticized ALJs for
equating the ability to perform minimal household tasks with the ability to perform
full-time work. See, e.g., Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013) (“We
have repeatedly cautioned that a person’s ability to perform daily activities,
20
especially if that can be done only with significant limitations, does not necessarily
translate into an ability to work full-time.”)
Given the ALJ’s credibility determination was affected by the above errors,
remand is appropriate for reconsideration of these issues.
2. Evidence Not Addressed by the ALJ
Jones also argues that the ALJ’s decision did not adequately address the side
effects of her medication on her RFC. 5 See Flores v. Massanari, 19 F. App’x 393, 399
(7th Cir. 2001) (“The side effects of medication can significantly affect an
individual’s ability to work and therefore should figure in the disability
determination process.”); SSR 96-8P, 1996 WL 374184 (“The RFC assessment must
be based on all of the relevant evidence in the case record, such as . . . [t]he effects of
treatment, including limitations or restrictions imposed by the mechanics of
treatment (e.g., frequency of treatment, duration, disruption to routine, side effects
of medication).”).
At the hearing, Jones testified that she was currently using pain patches to
control her pain and that she experienced some effect on her balance, dizziness, and
blurred vision as a result. (R. 84.) Although not mentioning side effects from
medication, the ALJ did address these symptoms in reaching the RFC
determination, finding that Jones had problems with balance and accordingly
Although Jones frames this argument as related to the ALJ’s credibility determination,
she argues that the side effects of the medication itself affected her ability to perform other
work in the national economy, in practice arguing that the ALJ incorrectly assessed her
RFC. Compare SSR 96-7P, 1996 WL 374186 (stating that adjudicator must consider “[t]he
type, dosage, effectiveness, and side effects of any medication” as well as “the objective
medical evidence when assessing the credibility of an individual’s statements”), with SSR
96-8P, 1996 WL 374184.
5
21
limiting her RFC to work that could be performed mostly using a hand-held
assistive device, as well as finding that Jones’s blurred vision was contradicted by
evidence in the medical record and not otherwise credible. The Commissioner did
not err with regard to the consideration of these symptoms.
However, Jones also testified that she was taking anti-psychotic medication
which had made her unable to sleep, that she slept only for “[m]aybe two” hours
each night and, as a result, she also slept for “two to three hours a day” in thirtyminute intervals. (R. 90-91.) Jones argues that the ALJ erred when she failed to
address her need to lie down during the day because of the fatigue she experienced
from a lack of sleep due to her medications. “Although the ALJ need not discuss
every piece of evidence in the record, he must confront the evidence that does not
support his conclusion and explain why it was rejected.” Indoranto v. Barnhart, 374
F.3d 470, 474 (7th Cir. 2004).
Although the Commissioner argues that this limitation was adequately
addressed by the ALJ’s other analysis of credibility, the Commissioner admits in
briefing that the “ALJ did not separately address Jones’[s] allegation that she was
unable to concentrate because hallucinations kept her from sleeping.” (Def.’s Mot. at
14.) This is especially relevant in Jones’s case: as the Seventh Circuit has specified,
“no employer is likely to hire a person who must stop working and lie down two or
three times a day for an hour at a time.” Roddy, 705 F.3d at 639. Furthermore, the
Vocational Expert in Jones’s case testified that any more than four minutes per
22
hour spent not working would be unacceptable to any employer, and would
therefore preclude employment. (R. 107-09.)
In this case, therefore, an evaluation of these symptoms could have had an
effect on the ALJ’s finding of disability. See Villano v. Astrue, 556 F.3d 558, 563 (7th
Cir. 2009) (“[T]he ALJ did not mention [plaintiff’s] testimony about the frequent
crying spells she said she suffered as a result of her depression, and he should have
at least explained whether and why he found that testimony credible or not
credible, given her diagnoses of depression and related psychological problems.”).
And while the Commissioner argues that such an error was harmless because Jones
did not specify that the inability to sleep affected her daily activities, this is
incorrect: Jones connected the lack of sleep resulting from the medication to a need
to nap during the day in her testimony, as described above. Accordingly, it was
error for the ALJ to fail to determine the impact of this alleged symptom on Jones’s
RFC. See Villano, 556 F.3d at 562 (“If the Commissioner’s decision lacks adequate
discussion of the issues, it will be remanded.”).
3.
Evaluation of medical evidence
Jones also argues that the ALJ failed to follow the “treating source rule” by
incorrectly weighing the opinion of her treating physicians, Drs. Chicos and
Dolatowski, in assessing her RFC. An ALJ must give controlling weight to a
treating physician’s opinion if the opinion is both “well-supported” and “not
inconsistent with the other substantial evidence” in the record. 20 C.F.R. §
404.1527(c); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). “A claimant,
23
however, is not entitled to disability benefits simply because a physician finds that
the claimant is ‘disabled’ or ‘unable to work.’ Under the Social Security regulations,
the Commissioner is charged with determining the ultimate issue of disability.”
Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
Dr. Chicos, one of Jones’s treating physicians, concluded that Jones was
disabled. Although listing a number of diagnoses, Dr. Chicos’s form listed Jones’s
symptoms as “low back pain,” and the medical evidence supporting her findings as
“tender lower back at palpation” as well as evidence of a positive straight leg raising
test. (R. 352.) The ALJ discounted that opinion, concluding that it was “vague and
imprecise” and inconsistent with the opinions of other state agency doctors finding
that Jones was not disabled. Jones argues that the ALJ erred by failing to explain
how Dr. Chicos’s opinion was “vague or imprecise,” and that the ALJ did not provide
a sound basis for rejecting that opinion in favor of Dr. Lavallo’s. (Pl.’s Mot. at 1112.) However, although not explicitly discussing the medical evidence in the section
in which she discussed Dr. Chicos’s opinion, the ALJ did address the relevant
medical evidence contradicting that opinion, providing an adequate evaluation.
First, the ALJ in fact admitted that the medical records on which Dr. Chicos
relied “would certainly be consistent with the claimant’s allegations of pain and
pressure from her neck down to her legs.” (R. 47.) However, as the ALJ pointed out,
Dr. Chicos’s opinion was inconsistent with other substantial evidence in the record.
As the ALJ noted, “[p]hysical examinations included in the record have consistently,
though not universally, reported findings, which are essentially normal,” and the
24
ALJ referred directly to the medical records contradicting Dr. Chicos’s findings, (R.
47), including evidence showing that Jones had a nearly full range of motion in each
joint and a negative straight leg raising test, (R. 429), as well as records from Dr.
Chicos herself reporting that Jones’s back was “normal.” (R. 652.) The ALJ also
pointed to the report of Dr. Timothy E. King who, after administering an epidural
injection to Jones’s back, stated that “suspect[ed] her pain is primarily a
psychosocial issue.” (R. 47, 961.) This is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion,” Richardson v. Perales, 402
U.S. 389, 401 (1971), and therefore the ALJ did not err when she declined to give
Dr. Chicos’s opinion controlling weight. See 20 C.F.R. § 404.1527(c); Ellis v.
Barnhart, 384 F. Supp. 2d 1195, 1202 (N.D. Ill. 2005) (“The most that [the
claimant’s] argument establishes is that the objective medical evidence in the record
could be interpreted as either consistent with or inconsistent with [the treating
physician’s] opinion. This Court cannot resolve evidentiary conflicts or supplant the
ALJ’s judgment.”).
The ALJ also declined to give controlling weight to the opinion of another of
Jones’s treating physicians, Dr. Dolatowski, because she found it “vague and
imprecise and the functional limits shown appear to be a sympathetic opinion,
rather than based in the medical record.” (R. 50.) The Seventh Circuit has specified
that, while a treating physician’s opinion is important, “it may also be unreliable if
the doctor is sympathetic with the patient and thus ‘too quickly find[s] disability.’
Accordingly, if the treating physician’s opinion is inconsistent with the consulting
25
physician’s opinion, internally inconsistent, or based solely on the patient’s
subjective complaints, the ALJ may discount it.” Ketelboeter v. Astrue, 550 F.3d 620,
625 (7th Cir. 2008) (quoting Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir.1985))
(internal citations omitted).
On his evaluation form, Dr. Dolatowski listed numerous conditions
contributing to his diagnosis of Jones, including diabetes, asthma, scoliosis, spinal
stenosis, lumbar radiculopathy, diabetic neuropathy, and osteoarthritis of the hips.
(R. 973.) Dr. Dolatowski also specified that Jones “suffers with severe depression
and psychosis.” (R. 974.) Similar to Dr. Chicos’s opinion, the ALJ did not discuss the
medical evidence relevant to Dr. Dolatowski’s opinion in the same paragraph that it
specified the weight the opinion was due. However, the ALJ again addressed the
medical evidence contradicting Dr. Dolatowski’s findings in detail earlier in the
opinion. With respect to diabetes, the ALJ noted that test results had shown “no
evidence of neuropathy or myopathy” and no evidence of end-organ damage. (R. 45.)
Similarly, the ALJ also pointed to medical evidence showing essentially normal
findings with regard to Jones’s asthma, gastro-esophageal reflux disease, and
hypertension. And, as discussed above, the ALJ discussed in greater depth the
medical evidence regarding Jones’s degenerative disk disease and back pain. (R. 4647.) Although the statement as to credibility may not have been discussed in depth,
the ALJ also pointed to substantial evidence contradicting Dr. Dolatowski’s
conclusion as to Jones’s disability. Accordingly, the ALJ did not err in refusing to
give controlling weight to the opinions of Drs. Chicos and Dolatowki.
26
4.
Consideration of the 20 C.F.R. § 404.1527(c)(2) factors
The determination not to give controlling weight to a treating source does not
end an ALJ’s analysis, however. Where an ALJ does not give controlling weight to
a treating source’s opinion, she must nonetheless determine what value that
assessment does merit. Scott, 647 F.3d at 740; Campbell, 627 F.3d at 308.
Regulations require an ALJ to consider a variety of factors in determining the
weight due to an examining physician’s report, including: (1) the length, nature,
and extent of the treatment relationship; (2) the frequency of examination; (3) the
physician’s specialty; (4) the types of tests performed; and (5) the consistency and
support for the physician’s opinion. See 20 C.F.R. § 404.1527(c)(2); Scott, 647 F.3d at
740. Jones argues that, in rejecting the opinions of both Drs. Chicos and Dolatowski,
the ALJ failed to engage in any of the required analysis with respect to the weight
due the medical opinions.
It is true that, in concluding that the opinions of Drs. Chicos and Dolatowski
were due no weight, the ALJ did not explicitly mention the factors discussed above.
And, although the ALJ’s decision discussed the supportability and consistency of
those medical opinions with the record, it failed to consider the other factors present
in the regulation. There is some disagreement within in the Seventh Circuit as to
whether or not an ALJ’s failure to explicitly discuss all the factors in a decision
requires remand on its own. Compare Campbell v. Astrue, 627 F.3d 299, 308 (7th
Cir. 2010) (remanding where “[t]he ALJ’s decision indicate[d] that she considered
opinion evidence in accordance with §§ 404.1527 and 416.927” but did not “explicitly
27
address the checklist of factors as applied to the medical opinion evidence”) with
Schreiber v. Colvin, 519 F. App’x 951, 959 (7th Cir. 2013) (finding ALJ opinion
sufficient where, “while the ALJ did not explicitly weigh each factor in discussing
[the doctor’s conclusion], his decision makes clear that he was aware of and
considered many of the factors”); see also Duran v. Colvin, No. 13-CV-50316, 2015
WL 4640877, at *8 (N.D. Ill. Aug. 4, 2015) (discussing split in authority).
Since remand is already appropriate here, the Court need not decide whether
a failure to explicitly discuss the factors in the regulation would require remand on
its own. On remand, however, the ALJ should expressly consider these factors in
deciding the weight to be given to Jones’s treating physicians according to the
regulatory factors when redetermining Jones’s RFC in accordance with this opinion.
CONCLUSION
For the foregoing reasons, Plaintiff Jones’s motion to Reverse the Decision of
the Commissioner of Social Security is GRANTED IN PART and DENIED IN
PART, and the Commissioner’s cross-motion for summary judgment [Doc. No. 25] is
DENIED. The Court finds that this matter should be remanded to the
Commissioner for further proceedings consistent with this Order.
SO ORDERED.
ENTERED:
DATE:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
October 22, 2015
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